Cases - Farebrother Building Services Ltd v Frogmore Investments Ltd

Record details

Name

Farebrother Building Services Ltd v Frogmore Investments Ltd

Date

(2001)

Citation

CILL 1762

Keywords

Construction contracts - adjudication - adjudicator's jurisdiction - extension of time - error of fact or law - enforcement - summary judgment - counterclaim - set-off against an adjudicator's jurisdiction - whether the adjudicator had jurisdiction to determine the dispute submitted to him - whether a party was entitled to set-off a sum claimed against the sum awarded by the adjudicator

Summary

This was an application for summary judgment in which Farebrother were seeking to enforce the decision of an adjudicator. The adjudicator had been asked to decide a dispute involving an entitlement to an extension of time and loss and expense.

Frogmore had made a counterclaim on the basis that Farebrother were themselves in critical delay as a result of which Frogmore claimed substantial sums of money in excess of those being claimed by Farebrother.

The adjudicator upheld Farebrother's contention for an extension of time, but stated that he had no jurisdiction to deal with the respondents' counterclaim.

Frogmore did not seek to challenge the adjudicator's award but sought to deduct or set-off the sum that Frogmore put before the adjudicator and that they asserted was not challenged.

The judge concluded that whether or not the adjudicator considered the counterclaim, that is not a matter that goes to jurisdiction. Rather, it is a matter that goes to the conduct of proceedings. The adjudicator may have been wrong, or he may have erred in what he did, but it is an error that is, in principle, within his jurisdiction. He has simply made a decision that is incorrect.

The judge said that it is not right for the court to try and dismantle or reconstruct a decision. Either the adjudicator has jurisdiction or he does not. If he had jurisdiction, this decision is binding even if he was wrong to reach the conclusion he did. The judge therefore concluded that the adjudicator's award ought to be enforced in the sum found by the adjudicator, and that it is not right to set-off the sum the defendant sought to deduct from the award.